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ARCHBISHOP O'HARA'S APPEAL. (04/26/57)

April 26, 1957

ARCHBISHOP O'HARA'S APPEAL.


Appeal, No. 118, Jan. T., 1957, from order of Court of Common Pleas of Montgomery County, Nov. T., 1954, No. 28, in the matter of the appeal of His Excellency, Most Reverend John F. O'Hara, C.S.C., Archbishop of Philadelphia. Order reversed.

COUNSEL

James E. Gallagher, Jr., with him William F. Fox, Fox, Differ & Honeyman and Stradley, Ronon, Stevens & Young, for appellant.

Samuel L. Sagendorph, for intervenors-appellees.

Samuel H. High, Jr., for Cheltenham Township, intervenor-appellee.

Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

Author: Jones

[ 389 Pa. Page 38]

OPINION BY MR. JUSTICE BENJAMIN R. JONES

The language of former Chief Justice STERN in Devereux Foundation, Inc., Zoning Case, 351 Pa. 478, 479, 41 A.2d 744, is particularly applicable to this appeal: "We are here called upon to deal with a type of controversy in which two interests, each in itself

[ 389 Pa. Page 39]

    legitimate and wholly commendable, come into conflict merely by reason of the proximity of their locations. The one interest is that of a school ..., and the other that of the inhabitants of a fine residential suburban section who oppose ... erection of the school."

The following facts as they appear in the opinion of the learned court below are pertinent and relevant to this appeal:

1.

"His Excellency, Most Reverend John F. O'Hara, C.S.C., Archbishop of Philadelphia, ..., is the equitable owner of approximately eighteen acres of vacant land located in Wyncote, Cheltenham Township, Montgomery County, Pennsylvania, having a frontage on Royal Avenue of 750.2 feet and bounded on the East and North by residences and on the West by the right-of-way of the Philadelphia and Willow Grove Street Railway Company ....

2.

"Said property is situate in an 'AA' residential district as defined by the Cheltenham Zoning Ordinance of 1929 as amended.

3.

"Said Zoning Ordinance as to 'AA' Residence Districts, Article III, provides, inter alia, as follows: "Section 301. - A building may be erected, altered, or used and a lot or premises may be used for any of the following purposes and for no other: (3) Educational, religious, or philanthropic use by and with the consent of the Board of Adjustment, excluding hospitals, sanitarium, rest home or correctional institution and including dormitory of an educational institution.' (Italics added).

4.

"On June 25, 1954, petitioner filed his application requesting a special exception so that said premises

[ 389 Pa. Page 40]

    might be used for educational purposes, a regional diocesan high school to serve fourteen parishes.

5.

"At the public hearing held on August 24, 1954, the plans provided for the erection of a regional, diocesan high school, three stories high, 337 feet in length by 65 feet in width with two extensions in the rear, one for a gymnasium and the other for an auditorium to accommodate 1,000 to 1,200 Catholic boys and girls, not to exceed 2,000 students. In addition, it was planned to construct a faculty house to accommodate 40 priests; three small convents for 20 sisters each, a parking area to accommodate 436 automobiles and in the rear a stadium for athletic events with portable seating to accommodate 3,200 persons.

6.

"On December 1, 1954, the Board of Adjustment, in a twelve page report, denied the application for a special exception ....

7.

"Three hearings were held (before the court below) and petitioner had made various changes in his plans and proposals, concerning the size of the high school building and faculty accommodations, and has entirely eliminated the stadium. (Words in parentheses added)

8.

"The present plan before the court provides for the erection of a diocesan high school covering four years of high school education, which will serve fourteen parishes. ... There will be no students attending the proposed high school from the City of Philadelphia.

9.

"The present proposed high school is to be built to accommodate 1,200 pupils and will not be expanded to accommodate more than 1,600 pupils.

[ 389 Pa. Page 4110]

.

"There are presently a total of 1,035 Catholic children of high school age in the fourteen parishes that would be served by the proposed diocesan high school. ...

11.

"The tract of land upon which the proposed high school is to be erected contains approximately eighteen acres with a frontage of approximately 750 feet on Royal Avenue, a public street in Cheltenham Township, having a 40 foot right-of-way with 24 feet paved between curbs, but no sidewalks. Said tract is approximately 600 feet from Easton Road and approximately 1,000 feet distant from Rice's Mill Road and the westerly line of the property abuts a right-of-way of the Philadelphia Transportation Company, which operates a street railway from Philadelphia to Willow Grove.

12.

"The proposed high school building will be 242 feet in length, fronting on Royal Avenue, and 65 feet in depth. It is the top cross member of a letter 'T', the stem of the 'T' being 120 feet deep and 98 feet wide. The building itself will set back 90 feet from the center line of Royal Avenue or 70 feet from the ordained road width.

13.

"The school building will be of modern, fire-proof brick construction and design, containing three ...


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